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Yesterday, sitting in an unprecedented composition of all 11 judges, the UK Supreme Court ruled by an 8 : 3 majority that the Government cannot initiate the process for the UK leaving the EU (the notification under Article 50 of the TEU) by itself using the Royal Prerogative, but instead an Act of Parliament is needed. The decision itself and the press summary can be found on the Supreme Court website.

This is the constitutional case of a generation, and the result was eagerly awaited. The hearing, held over four days, had been live streamed and so attracted huge attention. This Kat feels he should blog about it, having covered the earlier decision of the Divisional Court that unanimously reached the same conclusion. But he finds himself strangely unexcited by the Supreme Court decision, in large part because the majority decision reaches the same conclusion on the main issue for similar reasons as the earlier judgment. It is clearer and more thoroughly argued, because the case was more thoroughly and better presented at the Supreme Court than at first instance, where it seemed to this Kat that the Government was barely arguing its position but instead assuming the result that it sought to persuade.

There has already been written a host of blogposts and newspaper articles on the Supreme Court decision - interested readers have probably read some already, but if not you can do worse than start here for a short account. So instead this Kat will record some perhaps peripheral reflections after a day of consideration.

The outcome on the main issue was what this Kat expected for the non-legal but very human reason that the Divisional Court decision was unanimously taken by three very senior judges (Merpel - an avid follower of the Order of Precedence - reminds the IPKat that two of them - the Lord Chief Justice and the Master of the Rolls - out-rank all of the Supreme Court judges apart from its President). It seemed unlikely that a further 11 very senior judges, who might be regarded as being very much ejusdem generis in their professional formation, would by a majority disagree.

The main issue is put in beautifully simple terms by Lord Hughes in his short dissenting judgment:

But, at some risk of over-simplifying, the main question centres on two very well understood constitutional rules, which in this case apparently point in opposite directions. They are these:Rule 1the executive (government) cannot change law made by Act of Parliament, nor the common law;andRule 2the making and unmaking of treaties is a matter of foreign relations within the competence of the government.

Nobody questions either of these two rules. Mrs Miller relies on the first. The government relies on the second. The government contends that Rule 2 operates to recognise its power, as the handler of foreign relations, to unmake the European Treaties. Mrs Miller contends that Rule 1 shows that the power to handle foreign relations stops short at the point where UK statute law is changed.

Mrs Miller’s case is that because there was an Act of Parliament (the European Communities Act 1972) to give effect to our joining the (then) EEC and to make European rules part of UK law, there has to be another Act of Parliament to authorise service of notice to leave. This is the effect, she says, of Rule 1. Thus, she says, Rule 2 is true, but does not apply.

The government’s case is that the European Communities Act 1972, which did indeed make European rules into laws of the UK, will simply cease to operate if the UK leaves. The Act was only ever designed to have effect whilst we were members of the EU. It agrees that as a government it cannot alter the law of the UK which statute has made, but it says that if it serves notice to leave the EU, and in due course we leave, it would not be altering the statute; the statute would simply cease to apply because there would no longer be rules under treaties to which the UK was a party. Thus, it says, Rule 1 does not apply and Rule 2 does.

Which of these arguments is correct depends in the end on the true reading of the European Communities Act 1972. Clearly, either reading is possible. The majority judgment gives cogent expression to the conclusion that it is Mrs Miller’s reading which is correct. For my part, for the reasons which Lord Reed very clearly sets out, I would have preferred the view that this Act was only ever to be operative for so long as the UK was a member of (first) the EEC, and now the EU.

That is the main issue in a nutshell. This Kat prefers the majority decision, because it construes the European Communities Act 1972 in a purposive manner. The dissenting judgments, of which Lord Reed's is the first and most detailed, rely on a much more abstract reading of the ECA 1972 in a manner that seems more like an exercise in algebra than a legal analysis. Also, they do not grapple with what otherwise seems to be an extreme constitutional oddity - a treaty that changes UK domestic law can only be ratified once Parliament has passed legislation that enables it (giving Parliament an effective veto), yet, according to the dissenting view, the Government can withdraw from the same treaty without further recourse to Parliament. Moreover, the dissenting judgments have no effective answer to the point that, according to their view, any Government could have withdrawn from the EU at any time without any Act of Parliament (since it was common ground that the Referendum does not have any legal effect - its force was only political in nature). Lord Reed's judgment answers that "Courts should not overlook the constitutional importance of ministerial accountability to Parliament", but that seems rather weak.

So far this post has considered the "main issue", but there was a further set of issues before the Supreme Court (a UK court) that was not part of the case before the Divisional Court (a court of England and Wales). These essentially involved the proposition that it would not be possible for formal notice of the United Kingdom’s withdrawal from the EU Treaties to be given without first consulting or obtaining the agreement of the devolved legislatures of Scotland, Wales and Northern Ireland. That was unanimously rejected by all of the judges; had it been otherwise the result would have been much more politically controversial, since the popular vote in Scotland and Northern Ireland was in favour of remaining within the EU, and so the consent of their devolved legislatures would be difficult to obtain.

The main issue is in fact less politically controversial, because it is entirely open to the Government to put before Parliament a very short Bill permitting the Article 50 notification. What distinguishes the Government from the Opposition is that former can ostensibly command a majority in the House of Commons, and so on the face of it the Government should be able to pass the legislation it needs. Indeed the Government has indicated that it still expects to be able to comply with its self-imposed deadline of the end of March 2017 for the Article 50 notification.

While checking who were the judges who dissented from the main judgment, this Kat was amused to find this article from The Telegraph on 4 November 2016, headlined "Four judges to rule on Brexit have previous ties to Europe", implying that this would motivate them to decide against the Government. In fact, two of the four, Lord Reed and Lord Carnwath, were among the three dissenters.

If the Government can pass the enabling legislation as it envisages, then the Brexit timetable of Article 50 notification in March remains on track. If MPs (or indeed Lords) seek to amend the Bill to impose restraints on the type of Brexit to be achieved, then the process could take rather longer.

9 comments:

I thought that para 216 (justifying dissent) was rather good: Parliament had already ceded control over the interpretation and application of the rights under the Treaties to the EU institutions, so the question of whether Parliament was required to be consulted before those rights were abrogated was settled in fact as well as in law. I found no good counterargument to this in the majority opinion. But I have not finished with my yellow highlighter yet...

A nice post however I disagree that Lord Reed's judgment requires an abstract reading of the ECA. Lord Reed explains that treaties themselves do not change domestic law - Parliament does through legislation (in particular see Lord Denning quotations at 183) - and that foreign relations fall within the prerogative powers. Lord Reed simply observes that nothing in the ECA can be seen to override these principles.

"This Kat prefers the majority decision, because it construes the European Communities Act 1972 in a purposive manner. The dissenting judgments, of which Lord Reed's is the first and most detailed, rely on a much more abstract reading of the ECA 1972 in a manner that seems more like an exercise in algebra than a legal analysis."

Personally I liked Lord Reed's analysis rather more because he gave an actual, textual basis for what he was saying rather than arguing, as the majority did, that there was a "fundamental difference" between, say, removing all EU law except a single directive on bendy bananas, and removing EU law altogether, without giving any basis for believing so.

Regardless of one's views on membership of the EU, this is surely a good day for democracy in the UK. We can now rest assured that rights granted to citizens under laws that have effect in the UK cannot be taken away by the stroke of a minister's pen.

In previous commentary, I had questioned what legal recourse there would be if, against the national interest, the government were bribed to withdraw from a treaty having effect under UK law. I never got a satisfactory answer to that question (especially if one considers that it may be impossible to prove that the ministerial action was a direct result of bribery). Having looked at the rather ineffectual options mentioned in the dissenting opinions (pretty much amounting to "shut the stable door after the horse has bolted"), I am rather glad that I need worry about this no more.

You have to feel sorry for Scotland, though. Cue lots of U-turns on points of principle by all parties involved, with Brexiteers extolling the virtue of countries remaining in an economic and political union and Scottish remainers highlighting the benefits of leaving such a union.

Hard not to see the huge dollops of irony in this... much like the Brexiteers who wanted to leave the EU in order to regain Parliamentary sovereignty (though, as the Supreme Court decision explains, this was never actually undermined by EU membership)... only to then take umbrage at litigation aimed at upholding that very principle.

It is also quite astonishing that the government seems to have come out of this feeling like it was a "win" for them, solely because the Supreme Court's decision will likely not delay their plans for Brexit. But a quick recap on key facts reveals a completely different story.

Fact 1: Cameron got it badly wrong by assuming that he would win the referendum, and therefore not making any plans for what he would do if this did not happen (other than resign and leave the mess he created for someone else to clear up).

Fact 2: May's government consistently got it wrong on the mechanism for triggering Article 50. In doing so, they not only ignored many reasonable (and well-reasoned) calls for Parliamentary involvement, but they also unnecessarily delayed the process of Parliamentary scrutiny. Worse still, they seemingly briefed against (and encouraged media criticism of) the litigants and the Divisional Court, leading to the astonishing situation where the legal profession had to call for the Lord Chancellor to defend the independence of the judiciary.

Fact 3: whilst Theresa has ruled out a few options regarding the UK's departure from the EU, it seems that the government is pursuing objectives that are mutually exclusive (e.g. securing free trade with Europe without submitting to the jurisdiction of the CJEU in settling disputes over common rules governing that trade), and with no plausible explanation as to how those objectives can be achieved.

Perhaps the last point is little bit harsh, as I'm sure it's not easy to satisfy the Brexiteers whilst simultaneously avoiding trashing important parts of the UK's economy. But with all of the delay that Theresa's Brexit strategy has so far (deliberately?) involved, I would have hoped for something a little bit more coherent by now.

All in all, it is fair to say the Brexit process has been a total shambles from the very start (with Cameron) right up to now. For all of our sakes, let's hope that things improve rapidly from here.

In reply to Proof of the pudding - of course under the current regime rights deriving from EU law can be added to, changed, or taken away without even the stroke of a British Minister's pen (let alone parliamentary involvement)...but I guess that's all water under the bridge now.

", I had questioned what legal recourse there would be if, against the national interest, the government were bribed to withdraw from a treaty having effect under UK law. I never got a satisfactory answer to that question (especially if one considers that it may be impossible to prove that the ministerial action was a direct result of bribery)."

1) Pretty obviously receiving bribes is a crime, a potentially treasonous one depending on the facts.

2) The governments acts in that case could potentially be JR'ed at the point they were proposed as unreasonable (in the Wednesbury sense). Doing so in response to a referendum is an entirely different matter since they can clearly show their acts to have been reasonable (at least in the Wednesbury sense).

3) Parliament could take a vote of no-confidence in the government, or legislate to constrain them.

4) You are asking, essentially, "what would you like the law to be" which is the wrong question.

"Having looked at the rather ineffectual options mentioned in the dissenting opinions (pretty much amounting to "shut the stable door after the horse has bolted"), I am rather glad that I need worry about this no more."

The majority were pretty clear that their ruling should be limited to the facts of the case and is not likely to be of broad application. See para. 98 where they say it does not apply to double-taxation treaties (and thus to many other kinds of similar treaties) and the numerous other places where they emphasise the unusual nature of the 1972 act and this case.

It is unlikely that if the UK ever joins the EU again (assuming we leave, which I would still like to avoid) parliament will leave quite so many questions hanging.

Like I said, bribery might be impossible to prove, especially if it is backed by a country or organisation that has deep pockets and is particularly skilled at covering its tracks (and/or media manipulation). Can't think of any country that fits that bill, can you?

If there is one thing that this case has highlighted it is the need for further constitutional reform. I would suggest putting Royal Prerogative on a statutory footing, so that its remit (even if broad in places) can be carefully circumscribed. It is an embarrassment that two such important principles (Royal Prerogative and Parliamentary Sovereignty) ever came into conflict and I, for one, am hugely relieved that Parliamentary Sovereignty prevailed.

Quite true. But there would at least be involvement of a democratically elected legislature, including representatives from the UK.

Whilst this may represent an unacceptable situation for committed Europhobes, I take a crumb of comfort from the fact that there are so many divergent views in the European Parliament that critical assessment of any proposed EU legislation is pretty much guaranteed.

In short, I would say that it is likely much harder to manipulate representatives from the whole of the EU than just those from a single country.

From this perspective, combined with the worrying tendency in recent years for governments to "centralise" all policy-making (ie come up with the policies, ignore all reasoned objections, minimise debate / dissent, furiously "spin" things to the media, etc.) I can't say that I'm particularly looking forward to the loss of the counter-balance that EU legislation has provided in the UK over recent decades. Whilst I may not always have agreed with that legislation (or bemoaned how poorly it was drafted), I do feel that we could be in for a shock when it no longer has any legal force in the UK. Politics in the UK has changes immensely since before we joined the EU and we will certainly not be returning to "the good old days". Those days have been and gone.

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